The Constitutional Silence On Judges In Politics

“Judges should be of stern stuff and tough fibre, unbending before power, economic or political, and they must uphold the core principle of the rule of law which says “Be you ever so high, the law is above you.”

-Supreme Court of India in SP Gupta v Union of India.

The announcement by a sitting judge of the Calcutta High Court of his intention to tender his resignation and possibly enter the political arena has taken the media by storm and has resurrected the old debate about the expected conduct of former judges of constitutional courts.

The legal and judicial community had a rather disproportionate representation in the Constituent Assembly, which was packed with legal stalwarts and jurists. It was therefore natural that the Assembly was extremely concerned with securing the independence of the judiciary. This revolved around the debate on the qualifications to be judges of constitutional courts, the security of their office, the tenure of judges, and restraints on their post retirement activities. That was the summer of 1949.

On June 7, 1949, KT Shah mooted before the Constituent Assembly a proposal that judges of Constitutional Courts should be barred from accepting executive office post retirement. His amendment read as follows:

“193-A. No one who has been a Judge of the Supreme Court, or of the Federal Court or of any High Court for a period of 5 years continuously shall be appointed to any executive office under the Government of India of the Government of any State in the Union, including the office of an Ambassador, Minister, Plenipotentiary, High Commissioner, Trade Commissioner, consul, as well as of a Minister in the Government of India or under the Government of any State in the Union.”

HV Kamath lent support and informed the Assembly that the Court would have to arbitrate and adjudicate disputes where the executive would be interested and therefore absent such a bar, the executive could well attempt to seek a desired outcome.

The Chairman of the Drafting Committee, who had skillfully piloted the proceedings so far, was in strong opposition to this view. Ambedkar said, “The judiciary to a large extent is not concerned with the executive: It is concerned with the adjudication of the right of the people and to some extent of the rights of the Government of India and the Units as such…the opportunity for the executive to influence the judiciary is very small and it seems to me that purely for a theoretical reason to disqualify people from holding other offices is to carry the thing to far.” He pointed out that, unlike as in countries, such as the United States, Indian judges retired at a relatively early age, and therefore to pension them off by barring opportunities to hold office would place “too many burdens on the members who accept a post in the judiciary.”

However, Ambedkar had no hesitation in moving and defending draft Article 196 (Art 220) which prohibited a person who had been a High Court judge from pleading or acting in any court or authority before the territory of India. Sadar Hukam Singh's amendment had sought to confine the prohibition only to the jurisdiction of the High Court from where the judge would retire. Kamath supported him as he felt a general prohibition was “undemocratic”.

Mahavir Tyagi was on Ambedkar's side. He felt that if judges were not restrained from practicing law post retirement, “they would use these offices as spring boards or ladders to build much more lucrative practice after retirement.”

It is another matter that even before the ink could dry on the Constitution it had to be amended in 1956 to permit High Court judges to practice in the Supreme Court post retirement.

The thread of securing judicial independence carried on even in the Assembly's discussion on the retirement age of judges. Bahadur Pocker Sahib recommended a retirement age of 68 years instead of the proposed 65 years for Supreme Court justices.

This view was countered by the likes of Jaspat Roy Kapoor, who felt that the age should be 60 years as in those days bureaucrats retired at 55. “Anyone who has earned handsomely from the Government up to the age of sixty years should be prepared to retire and serve society thereafter in honorary capacity.”, said Kapoor. For good measure, he added that this was in consonance with the Hindu philosophy of renunciation and judges should emulate such ideals!

During the discussion of the retirement age and post retirement prospects of the judges, the Assembly witnessed many members sharing their views strongly. One such member was BT Chand, a retired justice himself, who gave the example of a British Federal Court judge who assumed political and diplomatic roles as a member of the War Cabinet and “carried on propaganda of a highly communal character.” The legendary K Santhanam however felt that a complete ban on the retirement opportunities of a judge would be unfeasible. “I want to prevent Supreme Court judges from taking office in private companies as chairman of the Board”. He however felt retired judges were useful to conduct inquiries and serve on commissions. MA Ayyangar, echoed Santhanam's concerns and commended the Assembly to deprive judges of any opportunity of “selling justice”. Judges could not be permitted to decide “in favour of a particular person and then join his service.”

The Constitutional silence on post retirement rehabilitation of judges by the executive, founded on Ambedkar's optimism, stood shattered with Pandit Nehru himself decided to cross the Lakshman Rekha.

In 1952 Nehru appointed Sir Saiyid Fazl Ali, a judge of India's Supreme Court since its inauguration, as Governor of Orissa. Thus, a precedent was set for deputizing judges to executive assignments. Nehru proceeded to entrust Fazl Ali with several other responsibilities in the coming years.

M C Chagla, who would one day go on to preside over the inaugural Mumbai meeting of the newly founded Bharatiya Janata Party on April 6, 1980, was greatly admired by Nehru who had many times attempted to persuade Jinnah's junior to move to the Supreme Court. Chagla had retired as Chief Justice of the Bombay High Court on October 26, 1958. In those days, judges preferred to lord over the state high courts. Cold and inhospitable Delhi held little charm. Nehru immediately appointed Chagla as Ambassador to the United States and later on as the High Commissioner to the United Kingdom. Chagla would go on to join Nehru's cabinet as the Minister of Education. When the daughter succeeded the Father, after a brief rule of the diminutive Shastri, Chagla was inducted as Indira's Minister of External Affairs in 1966.

As Indira's confrontation with the judiciary began to simmer in the late 60s, Chief Justice K Subba Rao resigned on April 11, 1967, and became the opposition candidate for President. He lost to Indira's nominee Zakir Hussain. This was the first major instance of a judge of a constitutional court demitting office and entering the political arena.

Justice KS Hegde, who along with Justices Shelat and Grover, would always rule on the wrong side of Indira Gandhi, was superseded for his stand in the Keshavananda Bharati Case in favour of an unamendable constitution. Hegde exited on his supersession and ended up contesting polls. During the Janata Party rule, Justice Hegde even served as the Lok Sabha Speaker.

Hans Raj Khanna who also quit after ADM Jabalpur's Case, ended up serving as Union Minister of Law and Justice for three days in the Charan Singh Government. Khanna, in his autobiography, “Neither Roses Nor Thorns”, terms his political misadventure as a regretful mistake and squarely blames the Jat Leader for persuading him to accept the office. Khanna was not entirely done with politics. In 1982 he again allowed himself to be persuaded by the opposition parties to contest for India's Presidency against Giani Zail Singh. The Congress has also brought judges like Bahrul Islam and Ranganath Mishra to Parliament. Krishna Iyer, who had made a transition from politics to judiciary was also tempted to take another shot at politics post his retirement when he agreed to be fielded as the opposition's Presidential Candidate.

Nehru's unfortunate legacy of appointing retired judges to gubernatorial office continued with many such appointments including that of retired Supreme Court justices Fathima Beevi as Tamil Nadu Governor in 1992 and Sathashivam as Kerala Governor in 2014. While the former was appointed 5 years after she demitted judicial office, the latter had cooled for barely 5 months. Sathasivam's record was sadly broken by Justice S Abdul Nazeer, the co-author of the anonymous Ayodhya Judgment and part of the Demonitisation Constitution Bench, who was appointed as Governor of Andhra Pradesh in 2023 just about a month after his “retirement.”

The tradition of conferring Parliamentary office on retired judges sadly continues as well. The latest instance being the Rajya Sabha nomination of Ranjan Gogoi within four months of demitting office as the Supreme Court's Master of the Roster during which he presided over significant cases such as Rafale and Ayodhya.

The 14^th Law Commission Report (1958) recommended that judges should be barred from accepting employment with the Union or the state, as a post retirement job. The same obviously gathers dust.

While we are yet to codify any norms for retired judges, the Full Court of the Supreme Court on May 7, 1997, adopted the “Restatement of values of Judicial Life” which was subsequently ratified by the Conference of Chief Justices in 1999. Some of the “values” set out below give us a fair idea of standards of judiciary set for itself:

“(1) ... Accordingly, any act of a Judge of the Supreme Court or a High Court, whether in official or personal capacity, which erodes the credibility of this perception has to be avoided.

(3) A Judge should not contest the election to any office of a Club, society or other association.

further he shall not hold such elective office except in a society or association connected with the law.…

(6) A Judge should practice a degree of aloofness consistent with the dignity of his office.

…

(8) A Judge shall not enter into public debate or express his views in public on political matters or on matters that are pending or are likely to arise for judicial determination.

(9) A Judge is expected to let his judgments speak for themselves. He shall not give interview to the media.

(11) A Judge shall not hear and decide a matter in which a company in which he holds shares is concerned unless he has disclosed his interest and no objection to his hearing and deciding the matter is raised.

(13) A Judge should not engage directly or indirectly in trade or business, either by himself or in association with any other person. (Publication of a legal treatise or any activity in the nature of a hobby shall not be construed as trade or business).

(14) A Judge should not ask for, accept contributions or otherwise actively associate himself with the raising of any fund for any purpose.”

The deliberations in the Constituent Assembly that hot summer of 1949 reflected the anxiety of our framers to find the ideal fix to insulate the judiciary and secure the independence of the judges. The Assembly allowed itself to be persuaded by Ambedkar's optimistic and a rather rosy view of a limited intersectionality between the executive and judiciary. As he stands memorialized as a statue overlooking the Top Court in the park in front of the complex and reduced to a selfie point, the father of the constitution would be amused as to how far from the mark he was in his definitive assessment that summer of 1949 that the executive of very little scope of “influencing” the judiciary. Today the Government is the biggest litigator and with the evolution of public interest litigation the Court almost daily is in a position where it is locked in a fierce battle for the turf with the government of the day. In fact, today the greatest challenge for a judge precisely to insulate herself from the ever-increasing influence that the executive has over the Courts.

My most favourite judge hung her boots in the Supreme Court and shut off the world declining all post retirement assignments save and except teaching school children how to play the piano. I am aware not everyone can be a Justice Ruma Pal, however I know I am a dreamer. I hope I am not the only one.

Author is a Senior advocate at the Supreme Court of India and the Delhi High Court.

Views Are Personal